VOLENTI NON- FIT INJURIA AND NECESSITY

ABSTRACT

The word ‘Law’ originated from the Latin word ‘Legam’ which means the set or the body of rules or from the Teutonic word ‘Lag’ which means definite. Therefore, law means a ‘definite rule of conduct’. To serve the norms of the society, to reduce the conflicts between the communities and the social groups, to maintain the decorum in the society and for many other reasons law plays an indispensable role. There are different branches of law for instance- property law, criminal law, corporate law, constitutional law, labour law, environmental law and so forth. The law of torts is also one of the crucial branches of the law. Besides the study of different branches of law, there is an important component of law which is legal maxims. A legal maxim is an established principle or the language of law. It is mainly worn by people associated with the legal profession including judges, advocates, lawyers, legal scholars, and so on. In spite of its complexity and static nature, it helps in the professionalism of legal documents and legal proceedings along with legal maxims or legal language and enhances the authority of people engaging in the legal field over society. This article most likely deals with the torts, and general defences, emphasising volenti Non-Fit Injuria and necessity. Through this article, I seek to evaluate in detail the maxim ‘volenti non-fit injuria’ and ‘necessity’.

KEYWORDS

Tort, Limitation act, civil wrong, criminal wrong, general defences, volenti non-fit injuria, voluntarily, expressed, implied, consent, necessity, criminal liability, civil liability.

INTRODUCTION

The word ‘tort’ has been acquired from the Latin word ‘tortum’, which means ‘to twist’. Therefore, tort means ‘a conduct which is not lawful or straight, but on the other hand twisted or unlawful’

According to S. 2(m) limitation act, 1963-

“Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

When an act is done by the person and due to that act there is loss suffered by another person that act is considered a tort. The person who commits the tort is known as a defendant and the person who suffers that act is known as the plaintiff.

Tort belongs to the category of civil wrong. Civil wrong is opposite to the nature of criminal wrong.

Civil wrong- In civil wrong, civil proceedings against the wrongdoer or defendant are instituted. In this case, the remedy is mostly in the form of monetary compensation.

Criminal wrong- In criminal wrong, criminal proceedings against the wrongdoer or accused are brought by the state.

Therefore, a tort is a civil wrong which is not a breach of trust or breach of contract.

What do you mean by general defences?

When some illegal or wrongful act is done by a person and due to such act the injury or loss is suffered by the other person, then the person who has done the wrongful act will be held liable and he has to pay damages which the court determines. However, there are certain circumstances in which the person can release himself from the liability or avoid the liability by taking the defences available in torts.

There are mainly two types of defences-

• Specific defences
• General defences

Specific defences are those which can be availed for some particular or specific wrong. For example, in action for trespass the defences of the right of prescription, leave and license, re-entry on land, self-defence and entry are available. In contrast, general defences are those which are available or can be availed for the number of wrongs. For example, the defence of an inevitable accident may be taken for an unexpected injury and this cannot be applicable when the accident can be foreseen or avoided.

What are general defences?

General defences are those which can be available for the number of wrongs. The following are the general defences:-

• Volenti non-fit injuria
• Plaintiff, the wrongdoer
• Inevitable accident
• Act of God
• Private Defence
• Mistake
• Necessity
• Statutory Authority

This research will analyze volenti non-fit injuria and necessity in detail.

What is volenti non-fit injuria?

Volenti non-fit injuria is also known as the defence of ‘consent’. The legal maxim volenti non-fit injuria is a Latin term which means that if a person willingly or voluntarily agrees to take the risk associated with the concerned activity, then the person cannot claim the injury, harm or loss that results from that activity. When the person himself consents to the infliction of some harm upon himself then he has no remedy for that in the law of torts.

The consent to suffer the harm may be expressed or implied.

ILLUSTRATION

1. A wants to do rock climbing and he knows that there is a threat if he suffers any injury during the rock climbing, he cannot ask for damage from another person or party, because in this act A freely gives his own assent to do the rock climbing.
2. X knew that the breaks of Y’s scooty weren’t working properly knowing the fact X sat on Y’s scooty and due to the rough driving of Y both of them got injured. Now X cannot ask for compensation because indeed knowing the fact he gave his consent to sit on the scooter and now he cannot ask for compensation from Y.

Expressed consent–

Express consent means when permission or consent for something is given specifically, either in the oral form or in writing. For example, if A invites B to his house then A cannot sue B for trespass similarly during the treatment in the hospital the doctor can ask for express written consent. A patient in such cases usually gives his expressed consent by signing a medical authorization form that gives authority to the doctor to do specific medical treatment, now a person cannot sue the doctor after signing the authorization form.

Implied consent-

Implied consents are those consent in which the permission for something is not given specifically, but it is inferred based on the actions or from the consent of the parties depending upon the facts of a particular situation. For example, a player in any game like in cricket or football is deemed to be agreeing to any injury during the normal course of the game similarly, a spectator at the cricket match cannot claim compensation if he is hit by the ball.

But if in case the deliberate injury is caused by another player, the defence of volenti non-fit injuria cannot be pleaded.

• Hall v Brooklands Auto Racing Club^[1]

A motor car race was being held at the Brooklands on the track which was owned by the defendant’s company where the plaintiff was a spectator. There was a collision between the two cars during the race; one of the cars was thrown among the viewers thus injuring the plaintiff.

It was held that the plaintiff had given the implied consent for such an act. Here the defence of volenti non-fit injuria was availed by the defendant because when the risk or injury can be foreseen the defendant cannot be held liable.

Since the plaintiff impliedly gives the consent for such an act whose risk and injury can be foreseen.        Therefore, the defendant was not held liable and the general defence of volenti non-fit injuria was successfully availed.

• Padmavati v Dugganaika^[2]

The two strangers took the lift in the jeep while the driver took the jeep to fill the petrol. All of a sudden, one of the bolts fixing the right front wheel came out. As a result, the two strangers were thrown out and one of the strangers among them died. It was held that neither the driver nor the master could be made liable and the principle volenti non-fit injuria was applicable.

The driver and the master were not held liable because of the two reasons:

• Firstly, it was clearly an accident.
• Secondly, the strangers voluntarily entered into the jeep.

The court accepted the principle of volenti non-fit injuria in this case.

• Illot v Wilkes^[3]

In this case, a person got injured due to a spring gun while trespassing on the defendant’s land. He voluntarily or knowingly undertook the risk and as a result, suffered the injury. The damages were not recovered in this case and the defendant was not held liable. Therefore, it was held that the trespasser who knew the presence of the spring guns on the land, broken glasses on the wall or the wild dog could not recover damages for the injuries caused to him.

The person who voluntarily undertook the risk and as a result, suffers the injury, cannot claim for the recovery of damages. Hence in this case the defence of volenti non-fit injuria was availed.

Therefore, the principle or the defence of volenti non-fit injuria was successfully applicable in the above-mentioned cases.

What are the essentials of volenti non-fit injuria?

To avail the defence of volenti non-fit injuria it is mandatory to have certain essential elements. These elements are as follows:-

• The consent must be free
• Consent obtained by fraud
• Consent must be obtained under compulsion
• Mere knowledge does not imply assent
• Negligence of the defendant

The consent must be free

To avail the defence of volenti non-fit injuria, it is mandatory to prove that the plaintiff’s consent to act to the defendant was voluntary and free. If in this case the consent of the plaintiff has been taken or obtained by coercion or fraud then this defence cannot be considered as successful. In addition, the act done by the defendant must be the same as the act for which the plaintiff has given consent. If there is any deviation in the act then the defendant will be held liable for the same.

For example, if A invites B as a guest in his house for dinner then, A cannot sue B for committing the trespass. However, if A requested B to sit in the drawing room and without any authority, permission or justification B enters into A’s bedroom, he would be held liable for the trespass and in this case, B cannot claim the general defence of volenti non-fit injuria.

The entry of the person to that of a particular point, the person cannot be held liable and he will be held liable if his entry is beyond the particular point.

• Lakshmi Rajan v Malar Hospital Ltd^[4]

In this case, the plaintiff Lakshmi Rajan, aged 40 years, observed a lump in her breast. She went to the hospital to remove the lump. There was no role in the uterus, but during her surgery, the doctor removed her uterus without any justification. The was no consent from the plaintiff for the removal of the uterus.

It was held that the defendant was liable because there was no implied consent from the plaintiff’s side for the removal of the uterus. Therefore, the general defence of volenti non-fit injuria was rejected by the court.

Consent obtained by fraud

The consent which is obtained by fraud does not serve as a good defence. The defendant will be held liable for the wrong and the defence of volenti non-fit injuria will not be applicable.

• R. v Williams^[5]

The defendant was the music teacher, he convinced a 16-year-old girl to have sexual intercourse with him by making her believe that this act would help to improve her voice.

The defendant was held liable by the court because the consent of the plaintiff was taken by fraud and the defence of volenti non-fit injuria wasn’t allowed.

Consent obtained under compulsion

When the consent is obtained during circumstances when the plaintiff does not have any choice, then the consent obtained is not proper consent.

This type of situation mostly arises in the master-servant relationship. In general, servants face a difficulty or dilemma in accepting the risky task or losing the job and in most cases servants accept the risky task. Hence, this does not result in proper consent. In addition, if the servant gives consent for the risky task not because of the compulsion of the master but of his voluntary or free will, then the defence of volenti non-fit injuria can be availed by the defendant.

Mere knowledge does not imply assent

The two points have to be proved for the maxim volenti non-fit injuria:

• The plaintiff was aware of the risk.
• He knowingly agreed to suffer the harm or injury.
• Smith v Baker^[6]

In this case, the worker was employed by the defendant to work a drill. The crane was used for conveying the stone from one side to the other and when the stone was conveyed the crane passed from the plaintiff’s head. While the plaintiff was busy in his work a stone fell from the crane and the plaintiff was injured.

It was held by the court that the defendant was held liable and at that time the warning was not given to the plaintiff.

Negligence of the defendant

It is also necessary that the act done by the defendant should be the same to which the consent was given by the plaintiff.

• Slater v Clay Cross Co. Ltd.^[7]

In this case, the plaintiff was injured by the defendant’s train driver while walking around the narrow tunnel which was occupied by the defendant. The company knew that the tunnel was used by the general public thus instructing the driver to drive slow and whistle when entering into the tunnel. The accident was caused due to the negligence of the driver.

The defendant was held liable and the defence of volenti non-fit injuria was not applicable in this case.

What are the limitations of Volenti non-fit injuria?

The application of the volenti non-fit injuria has some exceptions:-

• Rescue cases
• Illegal acts
• Negligence of the defendant

Rescue cases

The rescue cases are exceptions to the general defence of volenti non-fit injuria i.e. if the person voluntarily agrees to take the risk of the foreseen act then he cannot use the defence of volenti non-fit injuria.

In rescue cases, if a person enters into a vicious situation to save another person’s life then it will not considered voluntary. These cases seem to be reasonable.

For example, Y fell into the well due to A’s negligence. X jumped into the well to save Y. X while saving Y got some injuries. Here A cannot take the defence of volenti non-fit injuria and will be held liable for the same.

Illegal acts

It is another exception to the doctrine of volenti non-fit injuria.  If consent is given for the act which is unlawful, the defendant cannot escape from the liability even if all the essentials of the doctrine are fulfilled.

For example, if X asks Y to shoot A, X cannot escape from the liability by saying that he has done that act on the directions of A. Hence, the defence of volenti non-fit injuria cannot be availed.

• Negligence of the defendant

The exception of volenti non-fit injuria is the negligence of the defendant.

What is the Doctrine of necessity?

 It is another defence that the defendant takes in order to escape from liability. It is the defence which should be taken in order to prevent the harm. To prevent greater harm both civil and criminal liabilities can be used. In simple words, the defence of necessity means that the defendant’s actions are necessary to be taken in order to prevent greater harm or loss. If a person thinks that his small acts can be used to prevent greater harm then in such cases necessity can be applied. Necessity is different from private defence and inevitable accidents.

What is the History of the Doctrine of Necessity?

The doctrine of necessity has a historical evolution rooted in legal, ethical, and philosophical principles across different civilizations and time periods.

• Ancient Origins: Concepts resembling the doctrine of necessity can be found in ancient legal and philosophical texts. Ancient Greek and Roman thinkers, such as Aristotle and Cicero, discussed the idea of acting out of necessity.
• Medieval Common Law: Elements of the doctrine of necessity were present in medieval English common law, where certain actions taken under urgent circumstances to prevent imminent harm or disaster were considered justifiable.
• Maritime Law: The principle of necessity found application in maritime law, recognizing the need for sailors or ship captains to take urgent actions to preserve life, property, or the vessel in the face of storms, shipwrecks, or other maritime emergencies.
• Legal Precedents: Over centuries, legal cases have contributed to shaping and refining the doctrine of necessity, establishing precedents that recognize the defence in specific contexts, such as criminal law, contract law, property law, and tort law.

The history of the doctrine of necessity reflects its evolution from ancient philosophical discussions to its incorporation into legal systems worldwide. Its application in various legal contexts continues to evolve based on societal norms, legal precedents, and the balancing of competing interests between the need for immediate action and the preservation of legal norms and rights

What are the essentials of the Doctrine of Necessity?

1. The defendant’s actions were necessary to prevent greater harm or injury.
2. The defendant’s actions were not disproportionate to the harm or the injury prevented.

• Cope v sharpe^[8]

Sharpe i.e. the defendant entered into cope i.e. the plaintiff’s land to stop the fire from spreading over the adjoining land on which the defendant’s master had shooting rights. In this case, since the defendant’s act was considered reasonable hence, he was not held liable for the trespass.

What are the exceptions of the Doctrine of Necessity?

Basically, if the defendant believes that his action is necessary in order to prevent greater harm or loss or injury to him or the other person then the defence of necessity is applicable if the harm or the injury is reasonable. But if the harm or the injury is not reasonable then this defence of necessity is not applicable and the defendant cannot take the plea of this defence.

Judicial approach towards the doctrine of necessity

• Tata Cellular v The Union of India^[9]

In this case, the government of India issued assignation to all the mobile drivers to establish their networks in the four metro metropolises i.e. Chennai, Bombay, Calcutta and Delhi. The Evaluation Committee was supposed to read and estimate the tenders under the Telecom Regulatory Authority of India which has a director general of telecommunication in it. The render of the director general son was named at the end of the evaluation procedure. In this case, the Supreme Court of India did not authorize the violation of Nemo Judex in causa as without the Director General of the communication, no tender can be named and fair evaluation cannot be done. There was no option of the negotiation and therefore the decision was not liable to be struck down. In this case, the Supreme Court applied the doctrine of necessity heartedly.

• Election Commission of India v Dr. Subramaniam Swamy^[10]

In this case, it was held that if the Chief Election Commission entails a possibility of bias also their participation isn’t obligatory and likewise the doctrine of necessity won’t be applicable. Still, a proper course for them was laid down wherein they could call for a meeting and withdraw from the meeting thereby leaving it to the other members of the commission to make a decision. Only in the cases where there’s a conflict between them, the doctrine of necessity will be applied. Thus, in this case, the doctrine of necessity was changed into the doctrine of absolute necessity which in turn established that the said doctrine can only be invoked in cases of absolute necessity.

CONCLUSION

The general defence under the law of torts provides the defendant a chance to escape from liability. However, these defences can only be availed in certain special circumstances. General defences are the set of ‘excuses’ that can be taken by the defendant to escape from liability. The two defences i.e. volentie non-fit injuria and necessity are explained in detail in detail. The court has to ensure that the essentials of these defences are fulfilled or not, the defence can only be allowed if the essentials are fulfilled.

REFERENCES

• manupatra.com, https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysis (June 23, 2024)
• com, https://lawbhoomi.com/volenti-non-fit-injuria/ (June 23, 2024)
• leaders.in, https://blog.ipleaders.in/volenti-non-fit-injuria/ (June 23, 2024)
• leaders. in, https://blog.ipleaders.in/necessity-a-defence-in-tort/ (June 24, 2024)
• R.K. BANGIA, Law of Torts 3 (2020)
• All about the doctrine of necessity – iPleaders
• Doctrine of Necessity – Meaning, Historical Evolution And Case… (law corner. in)

[1] Hall v Brooklands Auto Racing Club, (1932) All E.R. Rep. 208: (1932) 1 K.B. 205.

[2] Padmavati v Dugganaika, (1975) 1 Kam. L.J. 93. 1975, A.C.J. 222.

[3] Ilott v. Wilkes, (1820) 3 B & Ald 304.

[4] Lakshmi Rajan v Malar Hospital Ltd., III (1998) CPJ 586 (Tamil Nadu SCDRC).

[5]

[6] Smith v Baker, (1891) A.C. 325.

[7] Slater v Clay Cross Co. Ltd. (1956) 2 All E.R. 625 : (1956) 2 Q.B. 264.

[8] Cope v Sharpe, (1891) 1 K.B. 496.

[9] Tata Cellular v The Union of India, (1994) 6 SCC 651

[10] Election Commission of India v Dr. Subramaniam Swamy, (2013) 10SCC500